Procedural and Substantive Differences in Merger Challenges by Different Authorities in the United States

Abstract

The United States has a decentralized system of merger enforcement in which responsibilities are shared among two federal agencies, state attorneys general, and private litigants. This article summarizes the various procedural and substantive differences in merger challenges brought by each of the two federal agencies as well as state enforcers. In particular, the article discusses the impact of merger investigations on enforcement outcomes, state cooperation with federal agencies, settlements and consent decrees, and litigation preparation efforts during the investigation phase. The article also addresses the significant differences among FTC, DOJ, and state merger enforcement, including the differences between federal court and administrative litigation, jurisdiction and venue issues, and potentially divergent standards for preliminary and permanent injunctive relief. The article concludes by evaluating proposals for reform and argues that reforms should be aimed at ensuring consistency in outcomes rather than abandonment of the current decentralized enforcement system.